Book
page 92-93

ARBITRATION

Any
disputes between states concerning the interpretation or
application of the Convention are to be submitted to
arbitration if the states have not chosen by declaration the
same court or tribunal or reached an agreement otherwise.[1]
For this reason, arbitration might become one of the most
common procedures
- in theory. Practice may well prove otherwise. If only
two parties are involved in a dispute, the arbitral tribunal
consists of five members[2]
(involvement of more than two parties can cause an increase in
the number[3]),
preferably to be chosen from a list of arbitrators maintained
by the UN Secretary-General. Each party may nominate one
arbitrator at its discretion, and the parties jointly nominate
the remaining three arbitrators[4].
If one or all of the parties fail to nominate the required
arbitrators, the President of the Tribunal of the Law of the
Sea is to appoint them.[5]
The arbitral tribunal has only one-quarter the number of
members of the Tribunal for the Law of the Sea (twenty-one[6]).
A further significant distinction is that the states parties
to the dispute must bear the entire expense of the arbitral
tribunal,[7]
both their own costs and the expenses of arbitration in
general (otherwise, only their own costs[8]).
While procedure before the Tribunal for the Law of the Sea is
determined by the Tribunal itself[9]
as a general code, each arbitration tribunal determines its
own procedure, and the parties may even agree to determine
procedure themselves.[10]
General principles of procedure in respect to effect of
non-appearance or failure of a party to defend its case,
decision by majority, award, and a final and binding award
correspond basically to those of the Tribunal for the Law of
the Sea.[11]
Even provisional measures may be prescribed by the arbitral
tribunal.[12]

SPECIAL ARBITRATION

Special
arbitration differs from arbitration in only two respects;
consequently, the general provisions of Annex
VII apply accordingly for procedure under Annex
VIII.[13]

The
arbitral tribunal is distinctive with respect to the lists of
arbitrators. A list of highly-qualified arbitrators is to be
prepared for each of the following subjects:
(1) fisheries, (2) protection
and preservation of the marine environment,
(3) marine scientific research, and
(4) navigation, including pollution from vessels and by
dumping. The special arbitral tribunal is to consist of
arbitrators who are preferably chosen from the list of experts
relevant to the matter in dispute. Each party may nominate two
members, and the parties nominate jointly the president. If
there is no agreement, the UN Secretary-General makes the
appointment.[14]
The second distinction is a provision for a "fact-finding"
procedure,[15]
according to which the facts which gave rise to the dispute
can be conclusively determined.[16]
However, the parties to the dispute can agree that the results
of the procedure have only the effect of recommendations
which serve as the basis for review by the parties, just as
they would have to agree to be bound by the findings.[17]

More than 15 years ago FAIRPLAY PUBLICATIONS Ltd, Coulsdon,
Surrey, England, published the book "Bernaerts' Guide
to the Law of the Sea - The 1982 United Nations
Convention". The guiding potential of the book to find
access to the Law of the Sea Convention is still given.
Internet technology and publishing on demand invite to
provide the interested reader and researcher with this tool
again. Only the Status of the Convention (ratification etc)
has been updated and instead of the Final Act, the book
edition includes the "Agreement relating to the
Implementation of Part XI of the United Nations Convention
of the Law of the Sea" of 1994. The corresponding web
site neither includes the text of the 1982 Convention, nor
the Agreement of 1994. The thorough Index of the 1988
edition is reproduced without changes.

Arnd Bernaerts,
October 2005,

Comments
1988-1990

___"an
invaluable guide to the understanding and implementation of
the 1982 United Nations Convention on the Law of the Sea"

Satya N. Nandan,
U.N. Undersecretay, in: Book Foreword, 1988__"clearly
presented"R.R.
Churchill, in: Maritime Policy & Management 1989, p. 340__"the
(book's) concept, which is so wonderful simple, is exactly
the factor which makes the book so useful for both the
novice as well as the person with extensive experience"

__"this is
probably the best edition on the Convention to put into the
hands of students"

A.V. Lowe, in:
Int'l and Comparative Law Quarterly 1990, p. 16

__"it will be
an invaluable reference tool and should sit on the book
shelves of policy makers and all others who are involved in
maritime matters"

Vivian I. Forbes,
in: The Indian Ocean Review, May 1990, p.10

Bernaerts’s
Guide to the 1982 United Nations Convention on the Law of the
Sea

FOREWORD
of the 1988 edition
by Satya N. Nandan

Special
Representative of the Secretary-General of the United
Nations for the Law of the Sea Office for Ocean Affairs and
the Law of the Sea

Revolutionary changes have taken place in the International
Law of the Sea since 1945. The process of change was
accelerated in the last two decades by the convening in 1973
of the Third United Nations Conference on the Law of the Sea.
The protracted negotiations, spanning over a decade,
culminated in the adoption of the United Nations Convention
on the Law of the Sea in 1982. By 9 December 1984, the
closing date for signature, 159 signatures were appended to
the Convention, the largest number for any such multilateral
instrument in the history of international relations.

The Convention, which was adopted as a comprehensive package,
introduced a new equity in the relationship among states
with respect to the uses of the ocean and the allocation of
its resources. It deals, inter alia, with sovereignty and
jurisdiction of states, navigation and marine transport,
over flight of aircraft, marine pollution, marine scientific
research, marine technology, conservation and exploitation
of marine living resources, the development and-exploitation
of marine non-living resources in national and international
areas, and unique provisions dealing with the settlement of
disputes concerning the interpretation and application of
the new regime.

There is no doubt that as we approach the 21st century, more
and more attention will be paid to the uses of the oceans
and the development of their resources. It is important,
therefore, that these developments should take place within
a widely accepted legal framework so that there is certainty
as to the rights and obligations of all states. The United
Nations Convention on the Law of the Sea provides that
framework. It establishes a standard for the conduct of
states in maritime matters. It is thus a major instrument
for preventing conflicts among states.

The convention and its annexes contain over 400 articles.
For many it may be a formidable undertaking to grasp the
substance and structure of it without making a considerable
investment in time and energy. Mr Bernaerts' guide,
therefore, is a welcome addition to the growing body of
literature on the convention. It provides a most useful
reference tool which will benefit administrators and policy
makers, as well as scholars. It makes the convention
accessible to the uninitiated and refreshes, at a glance,
the memories of the initiated. With meticulous references
and graphic presentations of the provisions of the
convention, Mr Bernaerts has given to the international
community an invaluable guide to the understanding and
implementation of the 1982 United Nations Convention on the
Law of the Sea.
April 1988

PREFACE
(extract) of the 1988 edition

The reader will be
aware that the 1982 United Nations Convention on the Law of
the Sea is the first constitution of the oceans, a
ground-breaking document in many respects. He or she might
also have made the discovery that the full text of the
Convention is immediately accessible only to experts. If the
Convention were only a treaty consisting of straightforward
technical regulatory provisions, it could be left to them
with a clear conscience. But the Convention is to a large
extent a political document and, as such, is expected to
influence significantly the development of relations among
the states in the world community; for this reason, a
wide-spread knowledge of the scope, goals, and regulatory
framework of the Convention can only serve to further the
aims of the document and would surely follow the intentions
of the many men and women who made this Convention their
life-work, such as Arvid Pardo (Malta), Hamilton Shirtey
Amerasinghe (Sri Lanka), Tommy T. B. Koh (Singapore), and
Satya N. Nandan (Fiji), to name only a few of the hundreds
who worked on the preparation of this Convention.

As the reader uses
the Guide (Part II), he will find that many provisions of
the Convention are much easier to understand if one knows
the basic framework within which a particular regulation is
placed. The Guide aims to provide this framework, with
reference to the text of the Convention and, in addition,
t& the supporting Commentary of Part III, which
describes the overall context of the major terms arid
concepts. The Introduction of Part I sketches the historical
background of the Convention and some of the general effects.
A detailed index at the end of the book will be of
assistance in finding specific subjects.